Sec. 179-1.7. Facility director's proceeding  


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  • (a) Authorization.
    (1) Where the DRO determines that there is reasonable cause to believe that a resident has committed an act which constitutes a level III rule violation, the facility director shall cause a FDP to be held.
    (2) Where the DRO determines that there is reasonable cause to believe that a resident has committed an act which constitutes a level II rule violation, the facility director, in his or her discretion, may cause a FDP to be held. If the facility director determines that a FDP is not necessary, the matter shall be returned to the DRO for appropriate action.
    (b) Formal charge(s) and designation of hearing officer.
    (1) Upon determining that a FDP should be held, the disciplinary review officer shall cause a formal charge(s) and notification of a scheduled FDP to be served on the resident within eight days of the incident.
    (2) The formal charge(s) shall consist of a written description of the incident of rule violation including the date, time and place of such violation. When two or more incidents are involved, each must be stated in writing and a copy provided to the resident.
    (3) The hearing officer shall be either the facility director or a designee at grade level 21 or above. No one who actually witnessed or was directly involved in the incident, or participated in the inquiry or investigation into the matter, or the DRO for the matter, or anyone who cannot act impartially, shall be appointed as hearing officer. A hearing officer may be requested from another facility in order to meet this requirement.
    (c) Notice and assistance to resident.
    (1) The resident shall have the opportunity to request an employee to act as the RA. The RA shall be chosen by the resident from a list of available employees provided by the facility director.
    (2) The resident may choose an employee who is not on the list, with the approval and at the discretion of the facility director. No one who witnessed or was directly involved in the incident, or participated in the inquiry or investigation into the matter, or the DRO for the matter shall be the RA.
    (3) The resident may waive a RA, unless the resident is either illiterate or non-English speaking. If the RA is waived, the hearing officer, in his or her absolute discretion, may offer the resident the opportunity to choose a RA, where such assistance would enable the resident to adequately comprehend the case in order to respond to the charge(s).
    (4) The notification of scheduled FDP with a copy of the charge(s) shall be delivered to the resident no less than 24 hours prior to the commencement of the FDP.
    (5) The RA shall explain the charge(s) and the nature of the FDP to the resident. The RA shall ask the resident whether there are any witnesses the resident would like to call, whether there is any factual material that can be presented on the resident's behalf and inquire into any reasonable factual claim the resident may make.
    (6) A written report of the action taken by the RA, including documentary evidence collected and statements of witnesses interviewed, shall be shared with the resident and delivered to the hearing officer at the FDP. A list of witnesses requested by the resident shall be provided to the hearing officer.
    (d) Conduct of a FDP.
    (1) The resident has the right to be present for the entire FDP unless his or her presence during the hearing compromises facility safety or security, the safety of an individual or OCFS goals.
    (2) All FDPs shall be recorded stenographically or by an electronic recording device.
    (3) All written reports and records of the incident, including those of the DRO and the RA, shall be transmitted to the hearing officer prior to the commencement of the FDP and shall be incorporated into the record without the necessity of formally reading them into the record.
    (4) The hearing officer shall advise the resident that any statement made by him or her in response to the charge(s), or information derived therefrom, may be used against him or her in a criminal proceeding and that (s)he shall be permitted to call witnesses on his or her behalf provided that doing so does not jeopardize facility safety or security, the safety of an individual or OCFS goals.
    (5) The hearing officer shall ask the resident whether he or she admits or denies the substance of each charge(s) or admits to a variation of the charge(s) which is acceptable to the hearing officer.
    (i) The resident shall sign where indicated on the proper form. Where an accepted admission differs from the charge(s) or the resident admits to only a portion of the charge(s), the points of difference or the portion of admission shall be noted on the charge(s) form by the hearing officer before the resident signs. If the resident refuses to sign, the RA, or the hearing officer if no RA is present, shall note the resident's refusal and sign.
    (ii) If the resident admits the charge(s), the hearing officer shall conclude the FDP as provided in paragraph (10) of this subdivision. The resident shall be given written notice of the FDP disposition as provided in paragraph (11) of this subdivision.
    (iii) If the resident denies or admits to only a portion of the charge(s), the FDP shall continue as provided in paragraphs (6) through (11) of this subdivision.
    (6) The hearing officer shall review the evidence and may question one or more employees who witnessed or have direct knowledge of the incident. At the hearing, the hearing officer also may question any other person who can contribute relevant information. The resident may be excluded from the hearing during the testimony of any witness whose testimony must be given in confidence. The reason for such exclusion must be included in the written record of the FDP.
    (7) The hearing officer shall advise the resident of the factual circumstances that appear to support the charge(s) and permit the resident to call any witnesses on his or her behalf. If a witness is unavailable, the hearing officer shall make a reasonable effort to contact the witness to obtain testimony.
    (i) The hearing officer may adjourn the FDP if appropriate and if the witness is necessary and has relevant non-redundant testimony. The reason for adjournment shall be stated in the record. If an adjournment is not appropriate, the reason shall be stated on the record.
    (ii) If the hearing officer wishes to use an unavailable witness's written statement, the reason for the witness's unavailability shall be stated on the record. After the hearing officer presents the witness's written statement, he or she shall ask for the resident's comments. Any questions or issues raised by the hearing officer or the resident which are not addressed in the report shall be clarified through witness testimony or other documentary evidence.
    (8) The hearing officer shall afford the resident an opportunity to comment on or make any statement with respect to any witness or charge(s) and to submit any relevant documents.
    (9) If the hearing officer is of the opinion that further questioning of witnesses is necessary or desirable, the FDP may be continued for such purpose. If the hearing officer is of the opinion that the further questioning of witnesses would be redundant or irrelevant, the hearing officer may deny further witness testimony and state the reason for denial on the record.
    (10) If the resident admits to the charge(s) or after all witnesses have testified, the hearing officer shall inform the resident that (s)he will receive written notification of the determination.
    (i) The decision shall be based solely on information obtained in the hearing process, including staff reports, the statements of the resident charged and evidence derived from witnesses and documents.
    (ii) The resident shall be asked if (s)he has a final comment regarding the incident or charge(s).
    (iii) The hearing will then be formally concluded.
    (11) The resident shall be given written notice of the FDP disposition within 30 days from receipt of the written notice of the scheduled FDP and charge(s). Except as provided in paragraphs (e)(1) and (2) of this section, this timeframe includes adjournments and continuances, under routine circumstances, to obtain relevant evidence. Prior to implementing any penalty, the reasons for the penalty shall be explained to the resident.
    (12) The record of the proceeding shall be maintained until the resident's maximum expiration date (for juvenile offenders) or expiration of placement (for juvenile delinquents) or for at least six months, whichever is greater.
    (e) Timeframes.
    (1) The hearing officer may adjourn the FDP when the resident is:
    (i) held in a local correctional facility on criminal charges;
    (ii) in a community mental hospital or mental health facility;
    (iii) out to court;
    (iv) otherwise unavailable (out of the facility).
    Such adjournment shall be in writing and include the reason. The adjournment documentation shall be included in the written record of the FDP. When a reasonable adjournment occurs, the FDP shall commence within seven days of the resident's availability. The date of availability shall be documented in the written record of the FDP. The resident shall be given written notice of the disposition within seven days thereafter.
    (2) In exceptional circumstances, other than those included in paragraph (1) of this subdivision, the hearing officer may request an adjournment or continuance for a maximum of 14 days beyond the 30 days from the resident's receipt of the written notice of scheduled FDP and copy of the charge(s).
    (i) Circumstances which may warrant an extension include, but are not limited to, an untoward incident which seriously inhibits program operations or a resident's unplanned transfer to another facility. Such request shall be in writing to the facility director and include the reason.
    (ii) If the facility director approves the extension request, it shall be forwarded to the division of rehabilitative services.
    (iii) The deputy commissioner for rehabilitative services or designee shall approve, disapprove or modify the request and notify the facility director within 24 hours of receipt of the request. The extension request documentation shall be included in the written record of the FDP.
    (f) FDP disposition.
    (1) In any case where, after considering all available evidence in the record of the FDP, the hearing officer is not satisfied that there is substantial evidence to support the charge(s), (s)he shall dismiss the charge(s) and so advise the resident. The report(s) of the incident and record of disciplinary proceedings shall be removed from all the resident's files.
    (2) If the hearing officer is satisfied that the record of the FDP contains substantial evidence in support of the charge(s), (s)he shall affirm the charge(s) and shall so advise the resident.
    (3) Where the resident admits to, or the hearing officer sustains, one or more of the charges, the hearing officer may make one or more of the dispositions listed below. Aggravating or mitigating factors may be considered when imposing a penalty which may raise the maximum or lower the minimum number of days loss of good time, except that no loss of good time less than 10 days may be imposed:
    (i) refer the matter to the resident's living unit to be addressed by unit staff;
    (ii) counseling and/or written reprimand;
    (iii) loss of one or more privileges for a specified maximum period not to exceed 120 days. A BIP shall be developed by unit staff;
    (iv) loss of a specific period of good time, if applicable, subject to restoration as provided in Subpart 179-2 of this Part governing good behavior allowances (applicable to juvenile offenders), as follows:
    (a) a minimum of 90 days up to a maximum of 240 days for a level III rule violation; or
    (b) a minimum of 10 days up to a maximum of 120 days for a level II rule violation;
    (v) a hold on release or transfer to a lower level facility for a period of 30 to 120 days (applicable to juvenile delinquents);
    (vi) involuntary restitution for loss or intentional damage to State property or the property of another person;
    (vii) suspension of the imposition of any of the above penalties, except loss of good time, for up to 120 days pending improvement of behavior. A BIP shall be developed by unit staff. If the resident fails to comply with the BIP, the matter may be returned to the hearing officer for imposition of the original penalty;
    (viii) facility service. Facility service is an activity performed by a resident that benefits or enhances the facility environment. All facility service activities must be performed within the secure perimeter.
    (a) Facility service shall not include nor interfere with regular assignments or regular program activities that residents are expected to complete in the normal course of their daily living. Facility service is not intended to include the assignment of menial tasks.
    (b) When possible, the service provided should give the resident an opportunity to learn and develop new skills or an opportunity to practice already acquired skills. Also, where feasible, the facility service should be related as closely as possible to the rule violation.
    (c) No more than 40 facility service hours may be assigned to a resident as a result of a rule violation hearing.
    (d) Facility service assignments shall be identified on the designated form, and shall include any specific information from the hearing officer's disposition. The form shall be prepared by unit staff and approved by the case manager and the facility assistant director.
    (e) The case manager is responsible for monitoring the facility service and verifying that the resident has successfully completed appropriate facility service activities for the designated number of hours. The facility service must be completed within 60 days from the date the resident received the disposition.
    (4) A written notice of the disposition shall be provided to the resident and shall include a statement of the evidence relied upon and the reasons for the determination. The determination shall be signed by the hearing officer.
    (g) Factors to consider in determining disciplinary sanctions.
    (1) The particular circumstances involved in the incident including, but not limited to:
    (i) the intent of the resident;
    (ii) any provocation;
    (iii) the contribution of the resident to the negative outcome.
    (2) The resident's behavioral history in facilities including, but not limited to:
    (i) positive behavior;
    (ii) past repetitions of the same type of act;
    (iii) history of level I, II and III rule violations, DRO dispositions and FDP dispositions;
    (iv) response to BIPs.
    (3) The severity of injury or damage caused.
    (4) The effect of the rule violation on facility security and the health and safety of persons within the facility.